Hixon v. Starr

Jenney, J. This is an action of contract to recover damages caused by a breach of covenant in a lease, dated June 29, 1918, for five years from July 1, 1918, and given by Nathaniel Fenton to the plaintiff William E. Hixon. The covenant is as follows: "Said Fenton agrees to keep the buildings in good repair on the outside and said Hixon agrees to make all inside repairs.” The property was owned by the lessor’s daughter. See Kendall v. Carland, 5 Cush. 74. The lease was given in connection with the sale by him to the plaintiff of a mattress manufacturing business conducted on the leased premises. The only evidence as to the contemporaneous knowledge of the daughter concerning the giving of the lease was that she first saw it “about the time” the business was sold when a deed of the other property was delivered to her as consideration for the transfer of the business. There was no evidence as to the date or time of delivery of this deed. Both the father and daughter testified that the former had no authority to execute the lease. The daughter by deed dated September 6, 1919, conveyed the property to the defendant. According to the report the deed contained the “recital” that the premises were "free from all incumbrances” except a mortgage, taxes, and a “certain lease” conceded to be that in controversy. The defendant admitted that she then knew of the existence of the lease, but denied that she had knowledge of the covenant to repair. It is assumed that the defendant had notice not only of the existence of the lease, but of its contents. Cunningham v. Pattee, 99 Mass. 248. Toupin v. Peabody, 162 Mass. 473. Leominster Gas Light Co. v. Hillery, 197 Mass. 267. The evidence did not justify a finding of estoppel because of the silence of the daughter when the lease was given. It did not appear that she knew of the lease until after its execution. Evidence of her knowledge thereof about the time the business was sold and when a deed was delivered to her was equally consistent with the conclusion that her knowledge had been acquired after the delivery of the lease. See Kronoff v. Worcester, 234 Mass. 254, 261. No attendant circumstances are disclosed by the record. It does not appear when the lessee first learned that [374] the lessor was not the owner of the premises or indeed that he did not from the beginning know of the initial infirmity of the lease. Consequently it could not have been found that her conduct caused the plaintiff to believe and rely upon something which afterwards it would be unjust for her to repudiate. Cambridge Institution for Savings v. Littlefield, 6 Cush. 210, 214. Tracy v. Lincoln, 145 Mass. 357. Stiff v. Ashton, 155 Mass. 130. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 421. Hamlin v. Sears, 82 N. Y. 327. The deed to the defendant did not by its terms purport to create rights in favor of the plaintiff, nor did it convey the land subject to the lease. At the most the words indicate that the lease was excepted from the operation of some covenant. Consequently the deed did not estop the grantee as against the plaintiff from claiming that she was not bound by the lease. Livingstone v. Murphy, 187 Mass. 315. The deed cannot be construed as ratifying the lease. Ratification is limited to the adoption of an act purporting to be done, or in fact done, in behalf of the principal. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381. Hosher-Platt Co. v. Miller, 238 Mass. 518. See Dempsey v. Chambers, 154 Mass. 330. The payment of the rent reserved in the lease did not give it life on the facts disclosed. Such action on the owner’s part, although expressed as taken under the lease cannot be construed as 'more than an oral assent thereto which did not create any interest other than a tenancy at will. R. L. c. 127, § 3. G. L. c. 183, § 3. Haven v. Adams, 4 Allen, 80, 93. See Freedman v. Gordon, 220 Mass. 324. As the lease did not bind Ada M. Fenton or the defendant, her grantee, it is unnecessary to consider whether the covenant to repair would run with the land. Questions relating to damages are also immaterial. The verdict for the defendant was properly ordered and in accordance with the terms of the report, judgment is to be entered in accordance with the verdict. So ordered.